Commonwealth v. Talley

Opinion by

Mr. Justice O’Brien,

Appellant, Maurice M. Talley, was tried by a judge and jury and found guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

The facts surrounding this appeal are as follows: On January 19, 1968, the body of one Miss Patricia Sholley was discovered in Schuylkill County, along Route 895, by officers of the Pennsylvania State Police. The decedent had been missing since December 26, 1967, when she was last seen leaving the Reading Hospital, where she had been employed as a practical nurse. An investigation revealed that a man fitting the description of appellant had been employed at the same hospital and was seen the night the decedent disappeared. A search of appellant’s residence, pursuant to a warrant, produced a bloodstained suit owned by appellant and a flashlight and nursing equipment that were identified as belonging to the decedent. Later two persons, who had been involved in an automobile accident with appellant on the night the decedent disappeared, notified police of this accident and gave the police the license number of the automobile appellant was driving. This number matched that of the decedent’s automobile. Moreover, after the decedent’s car was recovered, the police found fingerprints on the automobile that matched appellant’s. Appellant was arrested, tried and convicted of murder in the first degree.¹

Appellant first alleges that the trial court erred in not granting a defense motion for a mistrial due to alleged prejudicial remarks made by the district attorney in his closing argument. The district attorney, in closing to the jury, after a discussion of all of the evidence against appellant, discussed the evidence that appellant had given false information at the automobile accident which occurred shortly after the murder, stating: “. . . What is the importance of this accident? Well, it is two or three-fold really. One, the condition of his clothes between the time Farmer Ney and the people in the hospital saw him and now, all whitish substances on him. He is disheveled. He has his fly open. Ladies and gentlemen of the Jury, certainly when your fly is busted, isn’t it natural for a man’s shirt tail to stick out. Of course, the Zerbys particularly described this white substance on his coat and on his pants; and, of course, Mrs. Zerby, being a very efficient co-pilot as it were, she got the license number. She insisted he write his name and address down; but what did he write down? Did he write, James McOoy, because that was one of the names he used? No. Did he write, Maurice Talley? No. He wrote, James Roberson. Did he write his address down? No. He wrote 412 Church Street. Now, he used the same Street, but he got across the street, and there is no such address as was testified to. Did he write his telephone number down? Did he write his own telephone number down or the telephone number of [the decedent]? No, of course not. He wrote down the telephone of that poor little old lady who came in here. That’s whose telephone number he wrote down. He just made it up right then and there. Why is this important? This man has just committed murder. He didn’t want to be identified. That little scratch on the Zerbys car wasn’t concerning him.” If this statement was made before a review of the evidence against appellant, it may well have been error not to grant a mistrial. However, in Commonwealth v. Wilcox, 316 Pa. 129, 173 A. 653 (1934), we stated: “Complaint is made that the Commonwealth’s officer said the defendant was guilty of the offenses charged against him. . . . The Commonwealth’s attorney may always argue to the jury that the evidence establishes the guilt of the defendant, and that certain facts in evidence are conclusive of such guilt.” At page 139.

The district attorney did no more here than was allowed by Wilcox. He merely argued that appellant conducted himself in a surreptitious manner at the scene of an automobile accident because he had committed a murder. This was a reasonable inference based on the testimony that was given by the persons who were involved in the automobile accident with appellant. Moreover, the trial judge adequately protected against any possible prejudice that appellant could suffer as a result of the statement. He instructed the jurors as follows: “If you believe that any of the utterances they have made in their closing arguments express such an opinion, you will disregard such an opinion in considering the testimony in arriving at your verdict in this case. You are not bound by any opinion. . . .”

Appellant next alleges that the trial court committed error when it denied the defense’s request for polygraph and narco-synthesis testing on appellant. We do not agree. The polygraph test, even if conducted, would be inadmissible and, therefore, of no value to appellant. See Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973), and Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). The narco-synthesis test would also be inadmissible. This type of test is designed to probe the patient’s mind and secure information about the patient that he would not ordinarily divulge. This information, if obtained, would have no relevancy in the trial of a criminal case. At best, it would be inadmissible hearsay.

Appellant next alleges that the court committed error in the voir dire when it allowed the Commonwealth to challenge for cause those persons who expressed a personal antipathy to capital punishment. We find this argument to be without merit. Appellant in this case was not sentenced to death, but rather life imprisonment. It was, therefore, not error to exclude such jurors. See Commonwealth v. Sullivan, 446 Pa. 419, 432-433, 286 A.2d 898 (1971).

Appellant finally alleges that the trial court committed error when it denied appellant’s request to file additional reasons for a motion for a new trial, according to Rule 1123 of Pennsylvania Rules of Criminal Procedure. Eule 1123 provides, in part, as follows:

“(a) A motion for a new trial shall be filed within seven days after verdict, or within such additional time allowed by the court during the seven-day period.

“(b) A motion for a new trial shall be in writing, and the grounds shall be specified. All allegations of fact not of record shall be supported by affidavit. Leave to state additional specific grounds after the transcript is lodged must be sought within the period allowed pursuant to section (a) of this Eule or within such further time as the court may allow. Only the grounds so raised may be argued before the court.”

The trial court, in passing upon this allegation of error, reasoned as follows: “Here the Defendant urges that as a matter of right every defendant has the right to file additional reasons for a new trial after the record has been transcribed, Eule 1123 is otherwise: No reason is alleged for the extension of time by the Defendant here. . . .”

The rule provides that a defendant may request leave to file additional reasons for a new trial. This does not imply that a defendant can file these as a matter of right, but it is a matter of discretion with the trial court. In the facts of this case, we fail to see an abuse of that discretion. The same attorney who tried the case represented appellant in his post-trial motions. He should, therefore, have been aware of what issues he intended to raise. Appellant’s counsel filed a supplemental brief, after argument before our court, in which he alleged two additional trial errors which he contends he would raise if allowed to file additional post-trial motions. However, our examination of the record discloses that one of these allegations was, in fact, raised in appellant’s post-trial motions, and the other, relating to the use of allegedly gruesome photographs, could certainly have been raised by counsel without the necessity of referring to the transcript.

Judgment of sentence affirmed.

Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen concurs in the result.

1 Appellant does not question the sufficiency of the Commonwealth’s evidence.